The US government has come up with a rather decent idea: rather than limit FOIA releases solely to the requesting party, why not release it to everyone simultaneously? On its end, this would possibly save it the trouble of dealing with multiple requests for the same information, as well edge it closer to the ideals of the Freedom of Information Act.
This isn't a new idea. Several UK government agencies already post responses to public records requests publicly, ensuring that these documents can be seen by as many people as possible. (Of course, this may change, considering the efforts being made to dial back the reach of the UK's open records law.) This decision makes sense, as the point of the FOIA is to provide records to the general public -- not just certain individuals who may or may not make them public -- in the interest of government transparency.
Oddly, there's been some backlash against this announcement, coming from some people who have somehow managed to prioritize their personal interest above the public interest.
“I do share the concern of other journalists that this could hurt the journalist who made the original request,” writes Washington Post Investigations Editor Jeff Leen via e-mail. “It could also affect long-term investigations built on a number of FOIA requests over time.”
“FOIA terrorist” Jason Leopold has big issues with the approach. “It would absolutely hurt journalists’ ability to report on documents they obtained through a FOIA request if the government agency is going to immediately make records available to the public,” writes the Vice News reporter via e-mail. Leopold has already experienced the burn of joint release, he says, after requesting information on Guantanamo Bay. The documents were posted on the U.S. Southern Command’s Web site. “I lost the ability to exclusively report on the material even though I put in all of the work filing the requests,” he notes.
While I do sympathize with some of their concerns, I'm not all that impressed with the idea that public documents should somehow be considered proprietary, even when taking into consideration the effort made to obtain them. This argument basically boils down to journalists staking claims on public records, turning a government transparency tool into a scoop-generation device.
There's a downside to this proposed release system, but "losing" this "exclusivity" isn't part of it. Just because everyone will have access to the same documents at roughly the same time doesn't diminish the value of knowledgeable interpretations of the released information, especially if provided by the person who knew what
to ask for and has considerable expertise on the subject matter.
What's more concerning is what the government is basically asking of FOIA requesters, while giving them very little in return. It's asking requesters to take the hit financially for the good of the nation -- a burden the government should be bearing, not members of the public. If requested documents qualify for the government's new "release to one, release to all" policy, then all associated fees should be waived -- no matter who
is requesting them. The FOIA fee exemption applies to documents released to the public, rather than for commercial reasons. If the government is posting responsive documents "for all," even the most commercial of requesters should have all fees waived, no matter how many expenses are incurred fulfilling the request. (That the government even charges fees for public documents is still absurd, but for the sake of this argument, we'll pretend it's legit.)
More concerning is how often the government ties up FOIA requesters in litigation
. This can generate significant expenses for the requester, who will never have the "unlimited" funds to battle tenaciously unresponsive agencies. It's a bit rich for the government to drag requesters
through court, only to deny them whatever small financial benefits they may have received from "exclusivity" by dumping the documents into the public domain at the same time.
In addition, the government's more proactive approach will need to be watched closely. One method used to shake loose additional documents covering the same subject matter is to file multiple FOIA requests
. If the government considers a single response to be final word on a particular subject, this new era of "transparency" will forever be burdened by the addition of scare quotes. It's well-known that certain agencies will knowingly perform incomplete/incomprehensive searches
if they feel they can get away with it. When another request comes along looking for documents covering the same subject matter as a previous request (but with different search parameters), agencies may just point to existing online releases, rather than perform additional/more comprehensive searches that might result in new responsive documents.
Ultimately, the policy change will be a win for the greater public. A more transparent government has greater value than the perceived "exclusivity" of documents requested by media members. Hopefully, this new openness will trickle down to the many news outlets that still believe legal filings should only be quoted, but never posted where others (including competitors) can freely access them. There's a reason we include as many filings as possible when covering stories. There's no "exclusivity" in public records.